13 May, 2005
Land grab to go to arbitration
BY WILF MBANGA
LONDON - About 1 500 commercial farmers who have had their land forcibly and sometimes violently seized by Robert Mugabe’s government have taken their case to international arbitration.
The court case will bring to the world’s attention the stark facts of the tragedy of Zimbabwe’s land ‘reform’ programme - without the hype and emotionalism that has clouded the issue for the past five years.
The action is also likely to damage NEPAD severely. The expropriation of over US$4 billion in assets in Zimbabwe, without any action being taken by the international community - and without any condemnation from other African governments - is not going to encourage investment in Africa.
The farmers, most of whom are not settlers (as claimed by the current regime) but who acquired their properties after Zimbabwe’s independence, are seeking compensation or a return of their expropriated properties.
They fall into three different categories: Zimbabwean nationals; foreign nationals whose countries signed bi-lateral investment treaties ratified by Zimbabwe - such as the Dutch - and foreign nationals who countries did not have such agreements.
Under the terms of the treaties signed, Zimbabwe agreed to submit to binding international arbitration. In the bilateral investment treaty (BIT) signed with the Netherlands, Zimbabwe promised to pay compensation to Dutch nationals in the event that their property was expropriated.
Fifteen Dutch farmers have been notified that their requests for arbitration were registered on April 15 by the International Centre for the Settlement of Investment Disputes (ICSID) - a World Bank dispute resolution forum. Their assets have been valued at US$15 million.
Lawyers acting on behalf of the farmers in the UK, Bishop and Sewell, told The Zimbabwean that they had plans to persuade other governments that had not signed or ratified bilateral investment treaties with Zimbabwe to espouse claims on behalf of their nationals who have had their property expropriated.
“Under international law, harm caused by one state to the nationals of another state is a harm to the state itself,” explained a spokesman for the legal firm.
“Our approach is initially to pursue those actions which offer the greatest chance of success - that is those people who can benefit from bilateral investment treaties.
“By achieving success in those claims we hope to raise the issue of what has happened in Zimbabwe and to get a clear ruling from an international tribunal that there has been a breach of treaty and customary international law in Zimbabwe,” he said.
The legal action is intended to send a clear message to anyone who thinks they can go to Zimbabwe and buy expropriated assets for a bargain. The title to expropriated property in customary international law is unclear.
Therefore people who buy expropriated assets in Zimbabwe could face legal actions in their home jurisdictions by the true owners of that property. The problem is that many domestic courts (as opposed to international tribunals) will not entertain what they deem to be acts of sovereign states.